Best interests: the medical issues; update to main text para 3.26, page 80

A doctor cannot be compelled to treat someone.[17] A court can only consent to treatment to which the patient themselves could have consented.  Subject to an administrative court challenge,[18] the court cannot compel a Trust to offer a different treatment to a patient, even if the court concludes such a treatment would be the best option for the patient. The Supreme Court in Aintree University Hospitals NHS Foundation Trust v James [19] stated that:

‘[The MCA] is concerned with enabling the court to do for the patient what he could do for himself if of full capacity, but it goes no further. On an application under this Act, therefore, the court has no greater powers than the patient would have if he were of full capacity. … Of course, there are circumstances in which a doctor’s common law duty of care towards his patient requires him to administer a particular treatment, but it is not the role of the Court of Protection to decide that. Nor is that court concerned with the legality of NHS policy or guidelines for the provision of particular treatments. Its role is to decide whether a particular treatment is in the best interests of a patient who is incapable of making the decision for himself.’ [20]

Lady Hale in the judgment of the Supreme Court in N v ACCG [21] noted that s 17(1) of the MCA did not say that s 16 MCA powers included ‘deciding that a person providing health care must provide a particular treatment for P, or … deciding that a named person must take over responsibility for P’s health care’[22], adding:  

‘So how is the court’s duty to decide what is in the best interests of P to be reconciled with the fact that the court only has power to take a decision that P himself could have taken? It has no greater power to oblige others to do what is best than P would have himself. This must mean that, just like P, the court can only choose between the “available options”.’[23]

 

 

[17] See chapter 1 Consent – General, paras 1.6 and 1.7; Re J (a minor) (child in care: medical treatment) [1993] Fam 15
[18] For the approach to be taken to the judicial review of a Trust’s decision not to offer a particular treatment see chapter 17, Access to Healthcare.
[19] [2013] UKSC 67; [2014] AC 591
[20] Ibid §18; see also Moylan J in An NHS Trust v L [2013] EWHC 4313 (Fam): ‘Medical professionals cannot be required to provide treatment contrary to their professional judgement. It would clearly be inappropriate for the court to exercise its powers under the Mental Capacity Act in such a way as, to adopt the words from Re J … , directly or indirectly to require a doctor to treat a patient in a way that was contrary to the doctor's professional judgement and duty to the patient.’ (§112)
[21] [2017] UKSC 22 and see Southey, Paterson, Bhogal briefing note on N v ACCG judgment: bit.ly/serjinnhblog2.
[22] N v ACCG (ibid) §29
[23] Ibid §35 and see also §§30-33 noting the ‘excellent example’ of Eleanor King J namely: ‘If MN had capacity, but required the type of nursing care he currently needs due only to his physical needs, he might wish his mother to assist with his personal care. The care providers … may, as here, be unwilling to allow this for whatever reason; perhaps health and safety issues or difficult relationships with MN’s mother. MN with capacity would have the following options: (i) accept the conditions of residence at the care provider’s establishment, (ii) privately fund his care elsewhere, or (iii) seek to negotiate with the ACCG in the hope of them agreeing to fund his removal to a different residential unit which would allow his mother to assist with his personal care. What MN with capacity would not be able to do is to force, by way of court order or otherwise, the care providers … to agree to his mother coming into their facility and “assisting” with his intimate care.’ (§14)